Hope on the horizon: Hung up by park service, Swain’s cash settlement has been in limbo

A long overdue $4 million payment may finally make its way to Swain County after languishing for the past year in the budget dungeons of the National Park Service.

The payment is part of a larger $52 million cash settlement the federal government pledged to pay Swain County — a deal intended to finally compensate the county for a road that was flooded when Fontana Lake was built in the 1940s.

But since an initial down payment of $12.8 million in 2010, Swain hasn’t seen another penny.

Last year, $4 million was embedded in the National Park Service budget to go toward the cash settlement. But the National Park Service has been sitting on the money, claiming it was unclear whether it had the authority to turn it over.

A coalition of Swain leaders, congressmen and environmental groups have been trying to break through the frustrating logjam of red tape.

“I feel like a lot of people in Swain County have a legitimate gripe that they were betrayed in the 1940s. To think they would be betrayed on the cash settlement — it is like double betrayal. I don’t want Swain County to get stiffed again on this,” said Brent Martin, Southern Appalachian field director for The Wilderness Society in Sylva.

Efforts to shake it loose seemed to be in vain, however — at least until now.

A recent opinion issued by the federal General Accounting Office found that the park service doesn’t have to turn over the $4 million. But it can if it wants to.

The opinion may seem wishy-washy, but could be just the ammunition cash settlement supporters need. The park service previously claimed its hands were tied, that it couldn’t fork over the $4 million even if it wanted to. But the GAO report ruled the park service has the discretion to make the payment.

“The GAO kind of put it back in their court,” said Swain County Manager Kevin King. “So they have the authorization to make the payment, and now we are just waiting on that payment basically.”

Swain County leaders are planning a trip to Washington, D.C., in late February in hopes of meeting with the park service and Department of Interior in case things still aren’t resolved by then.

Congressman Mark Meadows, R-Cashiers, said Swain appears to be a victim of red tape, a systemic problem in the federal government as a whole.

“Obviously the money was appropriated with the cash settlement in mind,” Meadows said. “It is important to me to make sure this obligation gets taken care of.”

Reading between the lines

A quick study of federal budget conference reports shows an extra $4 million was inserted into the park service budget for Swain County. Congressional budget writers even included the $4 million for Swain on a park service “prioritized project” list.

But that itemized list didn’t appear verbatim in the final Appropriations Act. So the park service was left to read between the lines — were they supposed to give the $4 million to Swain or not?

That’s where the GAO report comes in. It doesn’t carry the same punch of forcing the park service to turnover the $4 million, but may prove a critical turning point in the stalemate.

“It knocks the pins out from under their former position,” said David Moulten, senior director for legislative affairs with The Wilderness Society in D.C. “It essentially states the National Park Service may use the money to pay Swain County. So it is now up to the park service to do the right thing.”

Park Service officials declined to comment for this article. When asked whether it would turnover the money in light of the GAO opinion, a park service spokesman said the agency is still seeking additional clarification — although it is not clear from whom.

Previously, the park service asserted that Congress itself would have to revisit the issue and vote on whether Swain was supposed to get the mystery $4 million sitting in the park’s budget.

“The National Park Service does not have the authority necessary to release the funds. It is not an option until Congress provides the authority,” Jeffrey Olson, spokesman for the National Park Service at its D.C. headquarters, said in an interview last summer.

But that’s actually not the case, according to the GAO ruling.

The park service doesn’t need an extra green light from Congress, according Edda Emmanuelli-Perez, managing associate General Counsel with the GAO in Washington, D.C.

“What we said now is, ‘Go back and look at the appropriation. If you determine it is available, then you may make a payment, but you are not obligated to do so,’” Emmanuelli-Perez said.

For those in Swain County who fought for the cash settlement, the stance of the park service has been disappointing, said Leonard Winchester, a local spokesperson for Partnership for the Future of Swain County.

It was clear from budget conference reports that $4 million was included in the park service budget expressly for the cash settlement, Winchester said.

“It is just a technicality,” said Leonard. “For all the other money in the budget, they’ll spend it like it was referenced in the conference report.”

The absence of a spelled-out list hasn’t stopped the park service from spending the rest of the money in its budget. Only when it comes to the cash settlement money did the park service decide a higher standard of authorization is necessary.

It would have been easier, of course, if the Appropriations Act had included a direct reference to the cash settlement.

“If it doesn’t do that, then as a legal matter the agency has discretion,” said Emmanuelli-Perez. “They can look at the conference report and say, ‘We are going to follow the recommendations in that report.’”

In Swain’s corner

The Wilderness Society and the National Parks Conservation Association have gone to bat for Swain County over the hung-up money. Several years ago, environmental groups helped convince Swain County to give up its fight to rebuild the long-ago flooded road and take a monetary settlement instead, saving the Smoky Mountains from a massive construction project through remote backcountry terrain.

“I feel like the conservation community owes it to Swain County,” said Martin, a Macon County resident who is the Southern Appalachian field director for The Wilderness Society in Sylva. “If we were opposed to the road and pushed for the cash settlement, we should also be pushing to make sure that cash settlement happens.”

The GAO opinion had been a last-ditch attempt to show the park service that it was allowed to turn over the money despite its claims to the contrary. Former Congressman Heath Shuler, a Democrat who lives in Waynesville but is from Bryon City, asked the GAO to weigh in last summer. The opinion didn’t come through until Shuler’s final days in office in December.

Shuler has been a champion of the cash settlement. Growing up in Swain County, Shuler knew first hand the deep-seated resentment and festering distrust of all things government — from the broken promise to rebuild the flooded road to the vast land takings for the creation of the Great Smoky Mountains National Park and later Fontana Lake.

Shuler was instrumental in negotiating the $52 million cash settlement. There was a catch, however. Unable to finagle the full $52 million in one fell swoop, an agreement was forged between Swain County and the federal government for annual installments — if, that is, Congress would appropriate it.

Before Meadows was sworn into office in early January, he had breakfast with Shuler where the cash settlement for Swain was one of the issues they discussed.

“We are going to follow up and make sure we get a resolution,” Meadows said.

Meadows questioned whether the $4 million appropriated back in 2011 — but likewise never remitted to Swain County — is still out there somewhere.

“It could still be sitting there, and we are looking in to that to see if we could get it released, too,” Meadows said.

It underscores another problem in the federal government. There’s no tracking device on money to easily show how agencies are spending their appropriations.

U.S. Senator Kay Hagan, D-N.C., has worked closely with Swain and the environmental groups on the issue as well.

Show me the money

The bureaucratic tale of Swain County’s $52 million cash settlement starts 70 years ago, when the creation of Fontana Lake flooded a snaking rural road leading from Bryson City to Tennessee. Swain County became hemmed in by the giant lake and the Great Smoky Mountains National Park, effectively relegated to “end-of-the-line” status.

The government promised to build back the road it flooded, but nearly 70 years later, the cost and environmental hurdles of building a new 25-mile road through the Smoky Mountains proved too great.

A compromise was struck instead: compensate Swain County with a cash payment of $52 million, spread out in annual installments.

But after an initial down payment of $12.8 million in 2010, Swain hasn’t seen a penny.

• In 2011, the payment was included in the National Park Service budget but was rescinded mid-year after being caught up in an across-the-board clamp down on earmarks by Congress.

• The payment was again appropriated in 2012, but so far, the National Park Service has refused to release it, claiming it lacked clear authority to do so.

• As for this year? The presidential budget left it out; some say accidentally, but left out nonetheless.